Essendant Co.

National Labor Relations Board - Board Decisions

Mar 16, 2017

365 NLRB No. 46 (N.L.R.B. 2017)

365 NLRB No. 46
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Essendant Co. and Teamsters Local Union No. 570
affiliated with The International Brotherhood of
Teamsters. Case 5–CA–170845
March 16, 2017
DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On October 18, 2016, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Gen-
eral Counsel filed exceptions, a supporting brief, and a
reply brief. The Respondent filed an answering brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1
findings, and conclusions and to adopt the recommended
Order.2

1 The General Counsel excepts, in part, to the judge’s failure to rule
on his motion to strike portions of the Respondent’s brief to the judge,
which cited a Wikipedia page and an online abstract, because they were
not part of the stipulated record. We find it unnecessary to pass on that
exception because the judge did not rely on those portions of the Re-
spondent’s brief and, in any event, the cited material would not affect
the result in this case.
2 Acting Chairman Miscimarra joins his colleagues in dismissing the
complaint, which alleged that the Respondent violated Sec. 8(a)(1) by
maintaining a rule prohibiting “distribution or posting of advertising
material, handbills or printed or written literature . . . at any time in
work areas.” In finding the Respondent’s rule lawful, Acting Chairman
Miscimarra relies on Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962)
(holding that employers may lawfully prohibit distribution of written
material in work areas during both working and nonworking time). He
also believes that an employer may lawfully prohibit the posting of
written materials anywhere on its property, provided the rule—like the
rule at issue here—is nondiscriminatory. See Flamingo Hilton-
Laughlin, 330 NLRB 287 (1999) (dismissing allegation that employer
violated Sec. 8(a)(1) by maintaining a “policy requiring prior manage-
ment approval before any employee posts a written notice on the ho-
tel’s premises”). In dismissing the 8(a)(1) allegation, Acting Chairman
Miscimarra does not rely on the judge’s application of the “reasonably
construe” standard set forth in Lutheran Heritage Village-Livonia, 343
NLRB 646, 647 (2004), a standard he believes should be overruled by
the Board or repudiated by the courts for the reasons set forth in his
separate opinion in William Beaumont Hospital, 363 NLRB No. 162,
slip op. at 7–24 (2016) (Member Miscimarra, concurring in part and
dissenting in part). Moreover, even if he were to apply the “reasonably
construe” standard here, and even if—as the General Counsel con-
tends—employees would reasonably construe the Respondent’s rule to
interfere with the electronic distribution of materials for Section 7
purposes during nonworking time to computers in work areas, Acting
Chairman Miscimarra would find the rule lawful. See Purple Commu-
nications, Inc., 361 NLRB No. 126, slip op. at 18–28 (Member Misci-
marra, dissenting) (setting forth then-Member Miscimarra’s rationale
for adhering to the holding of Register Guard, 351 NLRB 1110 (2007),
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. March 16, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Andrew Andela, Esq., for the General Counsel.
Joseph E. Tilson, Esq. (Cozen O’Connor), of Chicago, Illinois,
for the Respondent.
James R. Rosenberg, Esq. (Abato, Rubenstein and Abato, P.
A.), of Baltimore, Maryland, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was submitted to me on a stipulated record. Teamsters Local
570 filed the initial charge in this matter on February 29, 2016.
The General Counsel issued a complaint on June 30, 2016. The
stipulation was finalized on August 21, 2016, and the General
Counsel and Respondent filed briefs on October 3, 2016.
Respondent has offices in Hanover and Elkton, Maryland. It
provides wholesale office supplies. In the 12-month period
ending May 31, 2016, Respondent sold and shipped goods from
its Maryland facilities directly to points outside of Maryland
valued in excess of $50,000. Respondent admits that it is an
employer engaged in commerce pursuant to Sections 2(2), (6),
and (7) of the Act. It also admits that the Charging Party Un-
ion, Teamsters Local 570 is a labor organization within the
meaning of Section 2(5) of the Act.
On January 12, 2016, Respondent issued an employee hand-
book to employees at all its U.S. facilities, including employees
in a bargaining unit represented by the Charging Party Union.
The handbook contains the following rule which the General
Counsel alleges violates Section 8(a)(1) of the Act.
The Company believes that associates should not be disturbed
or disrupted in the performance of their job duties. For this
reason, solicitation of any kind by one associate of another as-
sociate is prohibited while either associate is on his or her

that employers may lawfully limit the use of their email systems to
business purposes).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
working time. In addition, distribution or posting of advertis-
ing material, handbills or printed or written literature of any
kind is prohibited at any time in work areas. (emphasis add-
ed).
Analysis
Applicable Legal Principles
The Board has long recognized the principle that working
time is for work and has permitted employers to adopt and en-
force rules prohibiting solicitation during working time, absent
evidence that the rule was adopted for a discriminatory pur-
pose, Peyton Packing,Co., Inc., 49 NLRB 828, 843 (1943).
However, an employer cannot generally prohibit solicitation by
employees in nonwork areas during nonworking time.
In Stoddard-Quirk Mfg. Co. 138 NLRB 615 (1962), the
Board drew a distinction between work rules prohibiting oral
solicitation and those prohibiting distribution of written materi-
als. The Board noted that written material, because of the po-
tential for litter, raises a hazard to production regardless of
whether it occurs on working time or nonworking time. Thus,
it held that an employer could prohibit the distribution of writ-
ten material in work areas during nonworking time.
On the other hand, the Board has also held that an employer
violates Section 8(a)(1) when it maintains a work rule that rea-
sonably tends to chill employees in the exercise of their Section
7 rights, Lafayette Park Hotel, 326 NLRB 824, 825 (1998). A
rule is unlawful if it explicitly restricts activities protected by
Section 7. If this is not true, a violation is established by a
showing that (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) that the rule was
promulgated in response to protected activity; or( 3) that the
rule has been applied to restrict the exercise of Section 7 rights,
Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004). The Board stated that a rule would not violate the Act
merely because it could be read to prohibit protected activity.
In Purple Communications, Inc., 361 NLRB No. 126 (2014),
the Board held that there is a presumption that employees with
access to their employer’s email system are entitled to use the
system to engage in protected activity via that email system
while on nonworking time.1
The General Counsel contends that Respondent’s handbook
rule violates Section 8(a)(1) solely because employees would
reasonably construe it to prohibit employees from distributing
electronic material during nonwork time to computers in work
areas. More specifically, the General Counsel in this case ar-
gues that by including the phrase “of any kind,” Respondent’s
rule violates the Act. At page 1 of his brief, the General Coun-
sel states:

1 The stipulation in this case is silent as to whether Essendant em-
ployees have access to the company’s email system.
By employing the phrase “of any kind,” Respondent has left
employees no choice but to believe that they are prohibited
from engaging in electronic posting and distribution.
Again at page 8, the General Counsel states:
Here Respondent’s inclusion of the phrase “of any kind” cre-
ated a rule so vast in scope that employees in today’s work-
place should not be expected to conclude it prohibits only the
narrow definition that the Board has traditionally ascribed to
“distribution of literature,” i.e., the physical distribution of
paper.
However, at page 10 of his brief, the General Counsel ap-
pears to vacillate as to whether Respondent’s rule would violate
the Act even without the words “of any kind.”
In light of the technological changes recognized throughout
Purple Communications, it is not plausible to assume that
employees today consider “printed or written” and “electron-
ic” to be mutually exclusive. How for instance, does one send
a text message without first “writing” it?
. . . who could expect employees to reasonably conclude that
the word “posting” involves only thumbtacks or a stapler, and
not, for example, complaining about wages in a Facebook
post? Employees confronted with determining what Re-
spondent means by “of any kind” are likely to decide that it is
safest just to avoid finding out.
I conclude that the phrase “of any kind” refers to the kind of
literature that may be posted, i.e., charitable, political, commer-
cial, rather than to method of posting. Moreover, the modifier
“of any kind” cannot be reasonably read in any other way.
Finally, the phrase “of any kind” makes no difference as to
whether Respondent’s rule violates the Act. Below is the rule
with this phrase excised:
The Company believes that associates should not be disturbed
or disrupted in the performance of their job duties. For this
reason, solicitation of any kind by one associate of another as-
sociate is prohibited while either associate is on his or her
working time. In addition, distribution or posting of advertis-
ing material, handbills or printed or written literature is pro-
hibited at any time in work areas.
One could just as easily argue that without the phrase “of any
kind,” the prohibition of “distribution or posting” written litera-
ture is equally violative if it reasonably would be read to pro-
hibit email messages sent on nonwork time to a computer lo-
cated in a work area. I find that Respondent’s rule cannot be
reasonably read to prohibit email messaging on nonworking
time to a computer in a work area in either case.
The complaint is dismissed.